HKSAR v. Mak Kin Wa

HCMA001151/1999

HCMA1151/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1151 OF 1999

(ON APPEAL FROM SPCC 5387 OF 1999)

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Coram: Deputy High Court Judge Tong in Court

Dates of Hearing: 27 June and 6 July 2000

Date of Judgment: 6 July 2000

Date of Handing Down of Reasons: 15 September 2000

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R E A S O N S

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1. The appellant, Mak Kin Wa, was charged with one count of indecent assault, contrary to section 122(1) of the Crimes Ordinance, Cap.200. The particulars alleged that the appellant, on 15 July 1999, inside the MTR from Admiralty Station to Tsimshatsui Station, Kowloon, in Hong Kong, had indecently assaulted Wong Wai Wah. There was in fact another charge against the appellant but it had no relevance to the present case.

2. The appellant pleaded not guilty to the charge and was convicted after trial by the learned magistrate. He was sentenced to a term of 14 days' imprisonment.

3. The appellant originally sought to appeal against both conviction and sentence. But on the hearing of the appeal, counsel for the appellant had informed me that the appeal on sentence would not be pursued. The only issue was therefore the conviction. Having heard counsel for the appellant, I had dismissed the appeal. I shall give my reasons now.

4. The appellant had formulated a total of eight grounds in the grounds of appeal. They are :

1. The learned magistrate erred in law in holding that the appellant was identified by PW1.

2. The learned magistrate erred in law in allowing the evidence on confrontation identification be admitted as evidence.

3. The learned magistrate failed sufficiently or at all to give a full identification warning. The learned magistrate also failed sufficiently or at all to consider the danger of confrontation identification and dock identification.

4. The learned erred in law in holding that "The facts remains, however, that it was never put to PW1 that she had mistakenly identified the defendant ..., the issue of mistaken identification was, to a large extent no a live issue at trial. In the circumstances, I found it easier for me to be sure of the correctness and reliability of PW1's identification evidence."

5. The learned magistrate failed sufficiently or at all to consider the effect of the discrepancies between PW1's testimony in court and the contents of her witness statement to the police.

6. The learned magistrate failed sufficiently or at all to consider the effect of the discrepancies between the evidence of PW1 and the evidence of PW2.

7. The learned magistrate failed sufficiently or at all to consider the appellant's good character.

8. In all circumstances of the case the conviction recorded against the appellant is unsafe and unsatisfactory.

5. Apparently the first four grounds of complaints were made in relation to the identification evidence. The other grounds covered matters of evidence such as the discrepancies in the prosecution evidence. Lastly, counsel argued that there was a lurking doubt in the present case.

6. Despite counsel's persuasive submissions, I was unable to agree that there was a problem in relation to the identification evidence in the present case. It was true that there were indeed questions asked by trial counsel in relation to identification but it was obviously not raised as a defence as such. The appellant now seriously attacked the admission of the dock identification evidence but it remained to be the case that when the dock identification was made at the trial, defence counsel had raised no objection at all.

7. The basis of the final submission by the defence was mainly that the victim was not a reliable witness, she had exaggerated her evidence and that it was possibly an accidental touch. Furthermore, the learned magistrate was actually invited to consider the issue of consent. There was no particular reference to the issue of identification. I noted that the appellant was represented by a very experienced counsel at the trial. I am sure there was a reason for whatever steps he had taken in defending the appellant.

8. Having said that, one could see that the magistrate had not totally ignored the issue of identification. In both of his oral judgment and Statement of Findings, the learned magistrate had considered this matter. He stated in his oral reasoning that :

"... It is trite law that it is up to the prosecution to prove the charge beyond all reasonable doubt and you, the defendant, have no burden of proof to prove your innocence. I find PW1 a very reliable witness whose evidence is not given to exaggeration. I find PW2 not a credible witness. I have doubts about the veracity of his evidence.

I note from the evidence that PW1 had made an identification of the defendant at the scene shortly after the incident. The defendant's case as put, was not one of mistaken identification though in cross-examination, defence counsel did question PW1 on her identification evidence. I note that no question was ever put to PW1 that she mistakenly identified the defendant as the person who had pressed against her body inside the train compartment of the MTR. I am sure that the dock identification evidence of PW1 is honest, accurate and reliable."

9. Then the magistrate elaborated the points further in his Statement of Findings. In fact he had devoted one whole section to the question of identification evidence. For the sake of completeness, I shall quote it in full. He stated :

"Assessment of Identification Evidence

6. PW1 had never met the Defendant before the incident in question. It was not a case of recognition.

6.1 In her testimony, PW1 described the person who had indecently assaulted her as a Chinese male aged between 30 to 35, of thin built and wearing spectacles. The Defendant was taller than her. It was never put to PW1 that her description did not match the Defendant's look at the time of the incident. It was never put to PW1 that there was another male either resembling the Defendant or matching PW1's description of the male and who was standing close to PW1 to her left, inside the train compartment. Inside the train compartment, during the 1st pressing, PW1 had a look at the Defendant's face. The look would have been a brief one but she was able to see the Defendant's face clearly. Nothing blocked her view of the Defendant. The lighting inside the train compartment was sufficient. She was then very close to the Defendant. There is nothing to suggest that there is any impairment to PW1's eyesight. Although PW1 found the Defendant's action disgusting and she felt scared at the time, it was not that she was totally paralyzed by fear or that she was confused, hysterical or in extreme distress at the time. She had clearly observed the Defendant's body posture and movement (lower part of body thrusting forward) and she was conscious of the need to take avoidance action. She did take that action, though without much success. She was still composed even through she would have felt embarrassed.

6.2 Later on, after leaving the train compartment, while PW1 was still on the platform, and before she was stopped by the woman police constable, PW1 did see the Defendant having come out of the train when she looked back. The lapse of time between PW1's first look at the Defendant's face inside the train compartment and her seeing the Defendant again outside at the platform must have been short. She then identified the Defendant to the woman police constable when they must have been only a short distance apart. It was never put to PW1 that she had made a mistaken identification of another person who was not the Defendant himself, to the woman police constable.

6.3 PW1 had arrested and cautioned the Defendant at the Tsimshatsui MTR Station at 6:40 p.m., which must have taken place after PW1's identification of the Defendant. It would be fanciful to suggest that PW1 had identified someone else other than the Defendant himself to the woman police constable and yet PW2 would have proceeded to arrest the Defendant.

6.4 There is of course a special need for caution in assessing identification evidence because of the inherent danger on such matters. An honest witness may make an honest but mistaken identification. A mistaken witness can be a convincing one. There is also the danger that a witness will too readily come to believe, without true recollection, that the person charged is the person whom the witness had previously seen. I had these in mind in my determination of this case.

6.5 The fact remains, however, that it was never put to PW1 that she had mistakenly identified the Defendant as the person who had pressed his penis against her buttock inside the train compartment. Although the Court is always concerned with sufficiency of proof, the issue of mistaken identification was, to a large extent, not a live issue at the trial. In the circumstances, I found it easier for me to be sure of the correctness and reliability of PW1's identification evidence."

10. Hence, although it was not specifically raised by the defence, the magistrate had not lost sight of this aspect of the evidence.

11. Counsel had very ably brought up the argument that there had been an improper "confrontation" which had taken place at the platform of the MTR. I have considered the relevant paragraphs in Criminal Evidence in Hong Kong by Bruce and McCoy (1995 ed.). I could not agree that what had taken place was a confrontation in the usual sense of the term. The police officers involved had not deliberately arranged for this. At the time of the incident, with the moving crowd on the platform, the officers had to confirm with the witness as to the identity of the suspect. They needed to make sure so that they would not make a wrong arrest.

12. I found that the police had not done anything improper in the circumstances and there was no need for the magistrate to give any further or special warning beyond what he had already done in the circumstances. Against the background of the present case, I came to the conclusion that the learned magistrate had given quite sufficient consideration of the identification issues.

13. Regarding the discrepancies in the evidence of PW1 and PW2, I found no merit in these grounds advanced. The magistrate had seen and heard the witnesses. He came to the view that PW1 was reliable and he accepted her evidence. He had done so after a careful analysis and consideration of the testimonies. He had given himself all the necessary warnings. He had stated the reasons as to why he would accept and reject certain evidence. More particularly, he had explained why he had chosen not to rely on PW2's evidence (except regarding the arrest). I was not persuaded that there were grounds to disturb his findings in this respect.

14. As to the complaint that the learned magistrate had failed sufficiently to consider the appellant's good character, I would simply refer to paragraph 5.17 of the Statement of Findings. The learned magistrate had considered the Berrade directions and I found no substance in this ground.

15. Concerning the lurking doubt point, if that means I would be entitled to substitute my "feel" for the case in order to determine whether there was some doubt as to what had really taken place, I fear that my feeling was that the evidence as a whole did point clearly to the appellant having committed the offence. There was no lurking doubt.

16. Counsel for the appellant had obviously studied the material with extreme care and had prepared the case in a competent manner. But despite his able arguments, I found there was no reason to overturn the magistrate's decision. The appeal must be dismissed.

Representation:

Mr Gary Lam, GC of the Department of Justice, for the Respondent

Mr Hectar H. Pun, instructed by Messrs Fairbairn Catley Low & Kong, for the Appellant